JUDGMENT

Pankaj Jain, J.

Present petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case bearing FIR No.088 dated 13.03.2023, registered for the offence punishable under Section 15(C) of NDPS Act, 1985 (Sections 27-A, 29, 61 and 85 of NDPS Act, 1985 added later on) at Police Station Pehowa, District Kurukshetra.

2. As per the case of prosecution, a secret information was received regarding the petitioner alongwith Narender Singh son of Mahender Singh and Karam Singh son of Mukhtar Singh indulging in trade of narcotics. Petitioner alongwith the other two accused were apprehended riding truck bearing No.PBll-BR-9674 and 230 kg of poppy husk was recovered. Petitioner was apprehended from the spot sitting at the rear seat of cabin.

3. Counsel for the petitioner submits that the petitioner was neither the driver nor the owner of the truck. He has drawn attention of this Court to the order dated 17.11.2023, whereby driver of the truck Narinder Singh stands admitted to bail invoking Section 167(2) of Cr.P.C. and further submits that vide same order Karam Singh the 3rd person who was travelling also stands released on bail granting concession of 167(2) of the Code. Petitioner being a poor person could not arrange for funds to file bail earlier in time.

4. Custody certificate has been produced. As per the same, the petitioner has undergone 01 year, 1 month and 19 days and has no prior criminal antecedents. There are total 35 cited witnesses and till date, none of them has been examined. Counsel for the petitioner submits that despite the fact that the petitioner is behind bars for more than 01 year and even the charges could not be framed till date.

5. Learned counsel for the petitioner relies upon order passed by Apex Court in the case of Rabi Prakash Vs. The State of Odisha passed in Special Leave to Appeal (Crl.) No(s). 4169 of 2023 decided on 13.07.2023 wherein it has been held as under

"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(l)(b)(ii) of the NDPS Act. "

6. Earlier to Rabi Prakash's case supra also Apex Court has consistently held that the prolonged incarceration has to be considered dehors bar contained under Section 37 of the NDPS Act. The Supreme Court in order dated 22.08.2022 passed by the Supreme Court in Special Leave to Appeal (Crl.) No.5530-2022 titled as "Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, had held as under:-

"We are inclined to release the petitioner on bail only on the ground that he has spent about two years in custody and conclusion of trial will take some time.

Consequently, without expressing any views on the merits of the case and taking into consideration the custody period of the petitioner, this special leave petition is accepted and the petitioner is ordered to be released on bail subject to his furnishing the bail bonds to the satisfaction of the Special Judge/ concerned Trial Court.

The special leave petition is, accordingly, disposed of in the above terms.

Pending application(s), if any, shall also stand disposed of."

7. Supreme Court in order dated 07.02.2020 passed by the Hon'ble Supreme Court in Criminal Appeal No.245/2020 titled as "Chitta Biswas Alias Subhas Vs. The State of West Bengal" was pleased to grant concession of bail to the petitioner (therein) in a case where the custody was of 1 year and 7 months ap